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power of a supreme legislature, or any branch of it, to judge of its own privileges.

According to the opinion of the eleven Judges, Paty and the other prisoners were remanded on the ground that "the cause of their commitment was not within the jurisdiction of the Court of Queen's Bench."

Encouraged, however, by the opinion of Holt, and anticipating a favorable consideration from the rival branch of the legislature, Paty, and the other Aylesbury men, when recommitted to Newgate, resorted to the attempt of bringing a writ of error to the House of Lords on the decision of the Court of Queen's Bench. No such writ of error had ever been before brought, and the proceeding involved the most serious consequences. Sir Nathan Wright, who was then Lord Keeper of the Great Seal, summoned a meeting of the twelve Judges to advise him whether ex debito justitie the writ should issue?

Although there was no precedent for such a proceeding, Holt eagerly supported it, and, without giving any decided opinion that the judgment of the Queen's Bench could thus be reviewed, he said that "at all events the writ ought to issue, and that the House of Lords would decide whether they had jurisdiction or not." In this opinion he at last induced all the Judges except one to concur.

The Commons were in a fury. They immediately made out warrants of commitment against the counsel in support of the application, two of whom were lodged in Newgate. The third made his escape from the Sergeant-at-arms by letting himself down from a high window in the Temple with the assistance of a rope and his bed-clothes. Some violent Tory members even intimated a determination to move the commitment of

12 Lord Raym. 1116. This decision has been acquiesced in ever since. Recently, some Judges have held out a threat that if the cause of commitment expressed in the warrant appears to them not to amount properly to a breach of parliamentary privilege they would discharge the prisoner; but such an attempt at usurpation is effectually guarded against by the practice which I had the honor to introduce in the case of the Sheriffs of Middlesex, arising out of the famous case of Stockdale v. Hansard, of returning to the habeas corpus in general words a commitment for breach of privilege,-which is allowed, on all hands, entirely to oust the jurisdiction of the Common Law Courts.

Holt the Chief Justice himself, whom they considered the mortal enemy of their privileges. Nay, the following narrative is actually to be found in various books of anecdotes, it having been copied, without inquiry, from one into another;—

"The Sergeant-at-arms of the Commons presented himself before Chief Justice Holt sitting on his tribunal, and summoned him to appear at the bar of the House to purge himself of his share of the contempt. That resolute defender of the laws said, with a voice of authority, 'Begone!' Soon after came the Speaker in his robes and full-bottom wig, attended by many high privilege members, and said, 'Sir John Holt, Knight, Chief Justice of her Majesty's Court of Queen's Bench, in the name of the Commons of England, and by their authority, I summon you forthwith to appear at the bar of the House to answer the charge there to be brought against you for divers contempts by you committed in derogation of their ancient and undoubted privileges.' His Lordship calmly replied to him in these remarkable words: Go back to your chair, Mr. Speaker, within these five minutes, or you may depend upon it I will lay you by the heels in Newgate. You speak of your authority, but I tell you that I sit here as an interpreter of the laws and a distributor of justice, and if the whole House of Commons were in your belly I would not stir one foot.' The Speaker, quailing under this rebuke, quietly retired with his high-privilege body-guard; and the Commons, terrified to contend longer with such an antagonist, let the matter drop."

But an inspection of the Journals proves that no such proceedings ever took place, and shows what the real catastrophe was. The two Houses, after a series of hostile resolutions and counter-resolutions, seemed ready to come to open war, the Commons setting writs of habeas corpus at defiance, and the Lords seeming determined to storm "Little Ease," in which a counsel was imprisoned for acting in obedience to their authority. As a preliminary step, they presented an address to the Queen, praying her Majesty to issue the writ of error to reverse the judgment of the Queen's Bench. The Queen returned for answer, "that she saw an absolute

necessity for putting an immediate end to the session. of Parliament.'

A dissolution almost immediately followed, and such was the reaction that the new elections turned out greatly in favor of the Whigs. In consequence, the Administration was remodeled, and, Lord Keeper Wright - being dismissed, the great seal was again offered to Sir John Holt. He was now so popular, and so much respected by all parties, that his accession to a political office would have strengthened the Whig Government; and Lord Godolphin, and the Duchess of Marlborough in the zenith of her sway, pressed him to accept it on any terms he might demand; but he said he was now more unfit for it than ever, as years and infirmities were coming upon him, and it was a day too late for him to be entering on a new career. Sarah thereupon gave the great seal to young Mr. Cowper, of whose youthful beauty she was supposed to be innocently enamored, and Holt was quietly permitted to end his days as Chief Justice.'

When the new Parliament met, a large majority of the members were found to disapprove the proceedings of the last House of Commons in the Aylesbury Case; and the plaintiffs in the additional actions, having been discharged out of custody at the termination of the session, were allowed to obtain verdicts and execution against the returning officer without further disturbance. The abuse of privilege by the Commons thus met with its proper corrective.

I cannot altogether defend Holt in this controversy. His judgment in Ashby v. White was undoubtedly just. In the subsequent proceedings, although his courage is to be admired, it can hardly be denied that he was carried too far by his Whig zeal against a Tory House of Commons. All that he did, however, was vigorously defended by that great constitutional authority, Lord Somers. For above a century the view of privilege taken by the eleven Judges who differed from him was implicitly followed, but there has recently' been a con

1 Lives of the Chancellors, iv. ch, cxiv.; 6 Parl. Hist. 225; 14 St. Tr. 695.

Lord Ellenborough was the first to countenance the notion of exam

trary tendency, which became rather rampant till checked by the interference of the legislature' and the superintendence of a court of error.'

ining the commitments of the Houses of Parliament by putting an extreme case:-" If a commitment appeared to be for a contempt of the House of Commons generally, I would neither in the case of that court nor of any other of the superior courts inquire further; but if it did not profess to commit for a contempt but for some other matter appearing on the return which could by no reasonable intendment be considered as a contempt of the court committing, but a ground of commitment palpably and evidently arbitrary, unjust, and contrary to every principle of positive law and natural justice, we must look at it and act upon it as justice may require, from whatever court it may profess to have proceeded." Burdett v. Abbott, 14 East, 1501.

13 Vict. c. ix.

Howard v. Gossett.

CHAPTER XXV.

CONCLUSION OF THE LIFE OF LORD CHIEF JUSTICE

H

HOLT.

OLT survived this controversy nearly five years, and continued to discharge his judicial duties with undiminished ability and credit; but no other case of great permanent interest arose before him, and he was not in any way mixed up with the important political events which render the latter portion of the reign of Queen Anne so interesting. He adhered steadily to the Whig party, without incurring the slightest suspicion of partiality while presiding on the bench, and he steered clear of all the intrigues by which they rose or fell. From his manly good sense, he must have sadly lamented their imprudent impeachment of Sacheverell; but he was snatched away before their ruin was consummated by this irreparable blunder. Having been summoned to attend the trial with the other Judges in the House of Lords, when it was about to commence he was struck with a mortal disorder. The last day that he ever sat in court was the 9th of February, 1710, and at three o'clock in the afternoon of the 5th day of March following he expired, at his house in Bedford Row,' in the sixty-eighth year of his age.

Notwithstanding the factious excitement which then prevailed, the death of this great magistrate produced a deep sensation in the public mind, and the regret of the Tories was embittered by seeing his office given as a reward for the violence with which Sergeant Parker had assailed Dr. Sacheverell and high-church principles. Both parties united in showing respect for the memory of the departed Chief Justice. The interment was to take place at Redgrave, in Suffolk; and not only all the Then called Bedford Walk. See Lord Raym. 1389.

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